Evidence - Opinion, Identification, Corroboration Flashcards
What is the rule relating to opinion evidence?
A witness must state only facts and not opinions.
What are the two exceptions to the opinion evidence rule?
- Expert opinion
- Non-expert opinion evidence (when a witness is not an expert but can give evidence which is beyond the understanding of the trier of fact, e.g. how a particular piece of machinery works).
What are the 7 requirements for expert evidence to be admissible?
- There must be a field of specialised knowledge.
- The witness must have expertise in an aspect of that field (training or study).
- The opinion proffered must be substantially or wholly based on the witness expertise.
- The expert must identify the assumptions of primary fact on which the opinion is offered.
- The opinion is not admissible unless evidence has been, or will be admitted (whether from the expert or some other source) which is capable of supporting findings of primary fact which are sufficiently like those factual assumptions to render the opinion of the expert of value (the basis rule).
- Demonstration that the facts on which the opinion is based form a proper foundation for it.
- Demonstration or examination of the scientific or other intellectual basis of the conclusions reached.
Which case identifies the 7 requirements for expert evidence?
Makita Australia Pty Ltd v Sprowles
How can a court be satisfied about the expertise of a witness?
The only practical means of assessing skill is to examine formal qualification and practical experience.
The burden of establishing expertise rests on the party calling the witness.
What is the Basis Rule?
The facts upon which an opinion is based are to be proved by evidence in order for the opinion to be valid in expert evidence.
This rule does NOT apply in the Commonwealth jurisdiction.
What is the ultimate issue rule with respect to expert evidence?
An expert must not seek to decide the ultimate issue in the matter before the court either by directly or indirectly giving evidence to that effect.
s80 of the CTH EA effectively abolishes the ultimate issue rule.
It says - evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue.
What is non-expert lay opinion evidence?
Non-expert lay opinion evidence is based on the witnesses powers of observation according to their experience of life and affairs.
Give an example of non-expert lay opinion evidence.
If a police officer/publican is asked if the accused appeared under the influence of liquor they will normally be challenfed in XXN and may be asked to give the factual basis for the opinion (e.g the accused smelled strongly of liquor or was unsteady on their feet).
Will ordinarily be allowed to express an opinion.
What the witness cannot do is offer a LEGAL OPINION based on that evidence (e.g. that the accused was unfit to drive a motor vehicle, inflamed by drink etc.).
Give some examples of subjects which may be covered by non expert lay opinon?
Age
Sobriety
Speed
Time
Distance
Weather
Handwriting
Identification in general
Character and reputation
Can you be an adhoc quasi expert?
Yes.
Expertise can be acquired through practice and no formal training.
All that is required is that the witness has acquired some skill or knowledge beyond common experience.
What are two common reasons to reject opinion evidence?
- Reception of the evidence might not assist, or might mislead the court.
- Could usurp the function of the jury. Jury could be tempted to blindly accept an opinion.
Is it possible for a witness to give an opinion that the accused was negligent?
No.
An opinion CANNOT be give on a question that can only be answered by the trier of fact.
It is not possible to tender evidence that the defendant was negligent OR that the deceased lacked testamentary capacity.
What are the UCPR requirements for expert reports?
UCPR 429H
What is the Commonwealth exception for expert reports?
